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Board for Correction Case No. 139-92

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Board for Correction Case No. 139-92

127.00 Conduct - Recind disciplinary action

Recommendation of the Board for Correction on Request of: xxxxxx xx xxxxxxxxx, xxxxx xxxxxx, Case No.139-92

Request:

Xxxxxxxxxxxxxx asked the Board:

"to reverse the xxxxxxxx decision of the Surgeon General accepting the xxxxxxxx recommendations of the Board of Inquiry, expunge all records which relate to or infer in any way to those recommendations and that decision, and reassign me back to the Xxxxxxxxxxxxxxxx."

Summary of Officer's Argument:

Xxxxxxxxxxxxxxxx, Xxxxxxxxxxxxxxxx at the Xxxxxxxxxxxxxxxx, PHS xxxxxx xxxxxxx, had come to work on the morning of xxxxx xx, 1990, and discovered that the phone in his office had been disconnected and the cord was missing. Xxxxxxxxxx had said that Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, informed him that Xxxxxxxxxxxxxx had the cord. (Xxxxxxxxxxx later denied under oath that he had ever made this statement). Xxxxxxxxxx had followed Xxxxxxxxxxxxxx to where he was working on the reservation to argue over the missing cord. An argument resulted in Xxxxxxxxxxxxxx hitting Xxxxxxxxxx.

Following the incident, a Board of Inquiry was convened by the Surgeon General, U.S. Public Health Service, to hear charges against Xxxxxxxxxxxxxx and he was found guilty. The Surgeon General accepted the recommendations of the Board of Inquiry concerning the imposition of disciplinary action against Xxxxxxxxxxxxxx. Xxxxxxxxxxxxxx appealed to the Board for Correction, alleging that the Board of Inquiry had been legally required to consider the mitigating circumstances in his case and that its failure to do so caused him to receive a harsh, unjust penalty.

Summary of Division of Commissioned Personnel's Argument and Documentation:

The Board of Inquiry had considered charges against Xxxxxxxxxxxxxx following his incident with Xxxxxxxxxx. The Board of Inquiry charged that he had:

  1. "... engaged in action and behavior of a dishonorable nature which reflected discredit upon Xxxxxxxxxxx and the PHS.
  2. used gestures disrespectful of, and displayed a contemptuous attitude, towards another officer in violation of the Commissioned Corps Personnel Manual, Subchapter 46.4, INSTRUCTION 1, Section D, 4 and 6. II

The Board of Inquiry had found Xxxxxxxxxxxxxx guilty as charged. The Surgeon General approved its recommendations on Xxxxxxxxx, 1990. The decision:

  1. reduced Xxxxxxxxxxxxxx to the Temporary Grade 0-4 (the recommendation allowed him to be automatically returned to Temporary Grade 0-5 should he receive an overall rating of 'C' or higher on his COER covering his performance for one year. He met that standard and was returned to the Temporary Grade 0-5 on Xxxxxxxxx, 1991).
  2. did not allow him to be considered for any other permanent or temporary promotion until after xxxxxxx x, 1994.
  3. changed his duty station from Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (DCP, not the Board of Inquiry had made this recommendation. Xxxxxxxxxxxx argued that this penalty alone had been more than a sufficient response to the incident).

Board Action on Officer's Request:

Date of Board Meeting: Xxxxxxx xx, 1994

Board Staff:

Ellen Wormser
Executive Director

Thomas E. White, Ph.D.
Executive Secretary

Members of the Board:

Robert McSwain
Chairperson of the Board and Acting Associate DirectorOffice of Human Resources, IHS
xxxxxxxx
SAMSHA

Findings and Conclusions:

  1. The Board for Correction did not need to consider Xxxxxxxxxxxxxx request to have the limit on his eligibility for promotion reversed since that limit had expired xxxxx, 1994.
  2. The Board for Correction agreed with the Board of Inquiry that there was a preponderance of evidence that Xxxxxxxxxxxxxx struck Xxxxxxxxxxxx with sufficient force to incur injury requiring medical attention and that that behavior was "unbecoming of a Commissioned Officer."
  3. Nor did the Board for Correction fail to note that the Board of Inquiry had addressed the issue of provocation, but had nevertheless found that Xxxxxxxxxxxxxx had acted dishonorably.
  4. The issue of most concern to the Board for Correction, however, was whether xxxxxxxxx had been justly and fairly treated when one considers the way Xxxxxxxxxx had been treated. In this regard, the Board thought it unfair that no steps had been taken to discipline Xxxxxxxxxx.

    It concluded that there was sufficient evidence brought to light in the case to have warranted DCP also pursuing Xxxxxxxxxx for having acted in a manner unbecoming of an officer.

    He had grabbed Xxxxxxxxxxxxxx while he was sitting in his car (in itself an act of physical aggression), followed him to a remote location, yelled at him, pounded on his car and put himself in front of the car so that Xxxxxxxxxxxxxx could not drive away.

    It would appear that IHS and DCP knew that Xxxxxxxxxx had a history of confrontations with hospital staff. Xxxxxxxxxxx had said he had counseled Xxxxxxxxxx regarding his confrontations. Testimony by Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Indian Health Service, indicated that there had been confrontations between Xxxxxxxxxx and other doctors, the nursing staff and patients.

    The record also indicates that Xxxxxxxxxx had also badgered hospital employees and caused disruption throughout the hospital during the last days of his assignment at xxxxxx.

    According to a memorandum written to the Investigative Officer on xxxx xx, 1990, on the morning of the incident, xxxxx xxxx, xxxxxx xxxxxx xxxxxx, had given Xxxxxxxxxx a memorandum stating that he should not interfere with hospital staff and should visit the hospital only to remove his personal property. Xxx xxxx stated that Xxxxxxxxxx chose to ignore orders, thus leading to an incident with Xxxxxxxxxxxxxx which could have been avoided had he followed these orders.

    Also according to the record, xxxxxxx xxxxxxxxx, xxxxx xxxx xx xxxxxxxxxxx xxxxxxxx, xxxxxx Area Office, who had been assigned to investigate the incident, stated that Xxxxxxxxxx told her he had: ...provoked [Xxxxxxxxxxx] and made him mad. The record also alleged that a statement by xxxxxxx xxxx, xxxx to Xxxxxxxxxx, had been omitted from her report. xx xxxx had allegedly testified that she witnessed the confrontation between the two officers and agreed with him [Xxxxxxxxxxxxxx] on what had happened.

    In summary, Xxxxxxxxxx conduct, in the opinion of the Board for Correction, had been equally unbecoming of an officer. The Board of Inquiry had considered all this, yet acted only to punish Xxxxxxxxxxxxxx. No charges were brought against Xxxxxxxxxx.

    Ideally the Board would like to recommend that OSG conduct a Board of Inquiry regarding Xxxxxxxxxxx behavior at xxxxxx (and perhaps other places) and conduct a second inquiry into Xxxxxxxxxxxxxx behavior so that a balanced decision could be made regarding both officers. However, the Board for Correction does not have the authority to direct OSG to conduct a Board of Inquiry into Xxxxxxxxxxx behavior, and too much time has passed. It only has the authority to act on Xxxxxxxxxxxxxx request to correct his record.
  5. The Board for Correction noted that Xxxxxxxxxxxxxx reassignment had not been part of the recommendations by the Board of Inquiry regarding disciplinary action against him. He had been placed on temporary duty to xxx, xxxxx from xxx x, 1990, to xxxxxxx xx, 1990, (after the altercation on xxxx xx, 1990). He had been placed on temporary duty at the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx and permanently assigned there on xxxx x, 1991.

Therefore:

The Board for Correction agreed with DCP that whether Xxxxxxxxxxxxxx had been provoked made no difference with respect to whether he was guilty... However, the purpose of the two Boards is different, and in the case before the Board for Correction, the issue before it was whether Xxxxxxxxxxx had been justly and fairly treated. The Board was convinced that Xxxxxxxxxx had also acted in a manner unbecoming an officer. The fact that no separate action was taken by DCP against Xxxxxxxxxx left them no alternative but to find that Xxxxxxxxxxxxxx had been treated inequitably and therefore unjustly. Additionally, the forced transfer of Xxxxxxxxxxxxxx went beyond the decision of the Board of Inquiry, and the Board for Correction viewed that as excessive punishment.

Recommendation:

Accordingly, the Board members recommend that the Xxxxxxxxxxxxxx request be upheld. Approval of this recommendation requires that his record be corrected by issuing a Personnel Order canceling his reduction to the Temporary Grade 0-4, thereby entitling him to retroactive pay and allowances and credit in grade effective xxxxxxx x, 1990. It also requires removal of all documents and materials in his Official Personnel File (OPF) and that of the Board of Inquiry and Surgeon General referring to the altercation between Xxxxxxxxxx and Xxxxxxxxxxxxxx.

The Board recognizes that a return to the xxxxx may not be possible, but it also recommends that Xxxxxxxxxxxxxx be given an assignment to a duty station of his choice as soon as possible, if he still so desires. Finally, it requires that Xxxxxxxxxxxxxx have access to his official records to enable him to verify that all corrections had been made.

We certify that this recommendation reflects the views and actions taken by the Board on Xxxxxxxxxxxxxx request and that it has been concurred in by the Board members.

We certify, further, that the Case Record, shown as an Attachment contains all of the documentation received on Xxxxxxxxxxxxxx request and that, in addition to applicable statutes, regulations and policies, it had been considered by the Board members in arriving at this recommendation.

Finally, we certify that a quorum of Board members was present on xxxxxx xx, 1994, when Xxxxxxxxxxxxxx request was considered.

If you approve, please sign below.

Robert McSwain
Chairperson of the Board and Acting Associate Director Office of Human Resources, IHS

Date

Reviewed and Approved:

I hereby approve the recommendation of the Board members upholding the request of Xxxxxxxxxxxxxx received and considered in accordance with the authority of section 221a(a) (12) of the Public Health Service Act (P.L. 96-76, as amended) and 42 U.S.C. 213a(a) (12), and authorize the Director, Division of Commissioned Personnel (DCP), Office of the Surgeon General/PHS to correct his record as stipulated by issuing a Personnel Order canceling his reduction to the Temporary Grade 0-4 and entitling him to retroactive pay and allowances and credit in grade effective Xxxxxxxxx, 1990. It also requires removal of all documents and materials in his Official Personnel File (OPF) and that of the Board of Inquiry and Surgeon General referring to the altercation between Xxxxxxxxxx and Xxxxxxxxxxxxxx. This recommendation also requires that he be given an assignment to a duty station of his choice as soon as possible, if he so desires. Finally, it requires that Xxxxxxxxxxxxxx have access to this OPF to enable him to verify that all corrections had been made.

Wilford J. Forbush
Director, Office of Management

Date

Attachment: Case Record


Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.